JUDGMENT Petitioner Mohd. Kadeer, who is facing trial on charges under sections 452, 323 and 506-B. of the IPC, has filed this revision petition against the impugned order dated 14.8.97, passed by Additional Sessions Judge, Panna. in Cr. Revision No. 73/94. At the tria1, non-petitioner Abdul Wahid was examined as PW 2, on 17.6.94. This witness Abdul Wahid filed an application, purporting to be one under section 311 CrPC (Annexure 2), on 16.8.94, seeking his re-examination as a witness in the case. The sole ground pressed into service, in support of the above prayer was that while his examination as a witness, on 17.6.94, in para 10 of his deposition, it has come to be mentioned that "YEH SAHI HAI KI KADEER NE MERI KOI MARPEET NAHI KI", whereas, claimed the witness, he did not depose to that effect at all. The petitioner accused seriously opposed the above prayer of the witness. J.M.F.C., Panna, on considering the rival submissions of the parties, found that no case warranting recalling of the witness was made out and, therefore, dismissed the above application. Being aggrieved of the above dismissal of his application, non-petitioner/ witness Abdul Wahid filed a revision petition before the Court of Sessions. The learned Additional Sessions Judge. Panna dis-agreed with the trial Court's view and. therefore, while allowing the revision petition directed the trial Court to recall Abdul Wahid, for his further examination. Shri A. Usmani, the learned counsel for the petitioner, relying upon the dictum of the Apex Court in the case of Mir Mohd. Omar and Others v. State of West Bengal, reported in AIR 1989 SC 1785 , contended that the impugned order is patently illegal and cannot be sustained. Shri P.C. Jain, the learned Panel Lawyer, and Shri V.N. Shukla, the learned counsel for non-petitioner Abdul Wahid, vehemently argued that the revisional Court had rightly set aside the trial Court's order, as the witness never meant what has come to tie mentioned in the above quoted statement, in para 10, of his deposition. Under the Scheme of Code of Criminal Procedure, correction of the evidence, recorded at the trial, is permissible under section 278 only. It would be useful to reproduce section 278, which reads as follows : "278.
Under the Scheme of Code of Criminal Procedure, correction of the evidence, recorded at the trial, is permissible under section 278 only. It would be useful to reproduce section 278, which reads as follows : "278. Procedure in regard to such evidence when completed -- (1) As the evidence of such witness taken under section 275 or section 276 is completed it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected. (2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding Judge may, instead of correcting the evidence make a memorandum thereon of the objection made to it by the witness, and shall add such remarks as he thinks necessary." The Apex Court had an occasion of examining the scope of correction of the evidence under section 278 CrPC, in the case of Mir Mohd. Omar and others v. State of West Bengal (supra), wherein it was observed in para 14 : "14. The object of S. 278 is two fold : firstly to ensure that the evidence of the witness as recorded is accurate and secondly to give the witness concerned an opportunity to point out mistakes, if any. If the correction suggested by the witness is one which the Judge considers necessary he will make it at once as required by sub-sec. (1) but if the correction is such that the Judge does not consider necessary, sub-sec. (2) requires that a memorandum of the objection be made and the Judge add his remarks, if any thereto. In the present case, the learned trial Judge corrected all the typographical errors which he considered necessary but refused to carry out the substantive part of his deposition. The section is not intended to permit a witness to resile from his statement in the name of correction. The learned trial Judge was justified in refusing to effect the change which he thought was intended to change the earlier version. He did not make a memorandum as the correction slip was unsigned and was not properly filed.
The section is not intended to permit a witness to resile from his statement in the name of correction. The learned trial Judge was justified in refusing to effect the change which he thought was intended to change the earlier version. He did not make a memorandum as the correction slip was unsigned and was not properly filed. Now, since the correction slip as well as the remarks of the learned trial Judge have become a part of the record, nothing more need be done as the provisions of S. 278 are substantially complied with." Thus, it is apparent that recourse to section 311 CrPC, for correction of the evidence recorded at the trial, cannot be taken. If no objection is taken by the witness about the correctness of his deposition, on the date of his examination itself, even recourse to section 278 CrPC would not be permissible. A witness cannot be allowed to resile at a later stage of the trial from his deposition recorded earlier, in the garb of an application under section 311 CrPC, and for that matter even under section 278 CrPC, if the objection in that behalf is not taken by the witness on the date of his examination itself. Now, reverting to the facts of the present case, admittedly non-petitioner Abdul Wahid did not object to the above sentence, in para 10 of his deposition, on the date of his examination in the Court i.e. on 17.6.94. The application, purporting to be one under section 311 CrPC was filed on 16.8.94 i.e. after almost 2 months of his examination in the Court. Merely because the contents of the disputed sentence, in para 10 of his deposition, run counter to his remaining deposition would not take his case any further. The trial Court was perfectly justified in dismissing his application filed under section 311 CrPC. The revisional Court has gone wrong in allowing the revision petition and directing recalling of prosecution witness Abdul Wahid for his re-examination. The impugned order, being patently illegal, cannot be sustained and is, therefore, liable to set aside. For the foregoing reasons, the revision petition succeeds and is hereby allowed. The impugned order dated 14.8.97, passed by Additional Sessions Judge, Panna in Cr. R. No. 73/94, directing the trial Court to recall prosecution witness Abdul Wahid, for his re-examination, is hereby set aside.
For the foregoing reasons, the revision petition succeeds and is hereby allowed. The impugned order dated 14.8.97, passed by Additional Sessions Judge, Panna in Cr. R. No. 73/94, directing the trial Court to recall prosecution witness Abdul Wahid, for his re-examination, is hereby set aside. The order dated 16.8.94, passed by J.M.F.C., Panna, dismissing the application, filed by non-petitioner Abdul Wahid, under section 311 CrPC, for his re-examination, is restored.